Everything You Need to Know About Title IX

Posted on Nov 21, 2017 3:33pm PST

Title IX hearings can be scary things for any student unfamiliar with them. From knowing how the hearing will go to knowing what to do at a hearing, a person's fate is in limbo.

What is Title IX?

"Title IX" is the section of the 1972 Education Amendments to federal civil rights law, which prohibits discrimination based on gender in educational programs or activities that receive federal funding. Under the law, sexual assault and sexual harassment can qualify as "discrimination" under the statute. In other words, it's a well-intended federal law that schools are required to follow in order to make sure that people are not discriminated against. For example, one student alleges that another student sexually assaulted him or her on a university campus. The university must now make the alleged perpetrator subject to a Title IX investigation and inevitable hearing.

What is the problem with Title IX?

Schools, particularly universities, receive direct federal funding, and, unfortunately, there is little direction given to schools on how Title IX is to be applied. Generally, guidance is available, but the procedure at a hearing, how a hearing is conducted, and so on, can change between colleges and universities. This means that students who are subject of a Title IX action face serious deprivations of their fundamental procedural constitutional rights. For example, a person can have an attorney present, but that attorney cannot ask questions. To make matters worse, there are requirements under Title IX to make hearings more fair to the accused, such as that he or she must be allowed to see the allegations against him or her, but there is little to no mechanism for recourse (other than a federal lawsuit) when schools violate Title IX—and they violate it all the time. In addition, it is easy for someone accused to be found in violation because the standard (or burden of proof) by which an allegation must be proven is only by a preponderance of the evidence—the lowest civil standard in the State of Illinois. Furthermore, our colleges and universities offer no protection to the accused. Students who face or have had a Title IX hearing often face serious personal consequences from being outcast to physical attack simply because they were accused. This is true regardless of the outcome and, if found in violation, regardless of punishment. Good luck to any student who was once falsely accused of something who now seeks for the university to take action against his or her attackers. Finally, colleges and universities impose no punishment when accusations are proven to be false. When an accuser makes an allegation, seeks to have another student expelled, and is proven to be a liar, higher education does not, in turn, do the correct thing, expelling that lying accuser. Instead, they leave the once-accused, now maligned, student to fend for himself or herself.

What can happen after a Title IX hearing?

After a hearing held under Title IX, the allegations could be unfounded, akin to a not guilty verdict, and there is no punishment at the university level. (Punishment at a personal level, threats or harassment from fellow students, online or in-person intimidation, and so on is another matter altogether that forces even those whose allegations were groundless to drop out or enroll elsewhere.) Frequently, if the allegations after a Title IX hearing are founded what will happen is some university discipline, whether it be probation, suspension, or expulsion.

Why do people need help with their Title IX hearing?

There are several reasons why people who are accused of something need help. First, as was discussed above, people are frequently denied their fundamental rights at hearings, and knowing how to navigate an unfair system can be impossible if you are unfamiliar with that system. Secondly, our political and cultural climate too often weighs heavily in the minds of those deciding what will happen at a Title IX hearing. There is no presumption of innocence, such as there would be in a criminal case, at Title IX hearings, and, if anything, thanks to our current political and cultural climate on college and university campuses, there is a presumption of guilt. Thirdly, most hearings will be lost without a strategy, and planning to simply deny any allegations is not a strategy. It will only turn a case into a he said-she said, and, thanks to what was discussed above, this will likely result in some university discipline. Finally, anyone accused and facing a Title IX hearing has to protect his or her freedom, because many times allegations will be made to police first. This means what is said, what is produced, and what the outcome of a hearing is can all affect whether a person is or is not charged, much less whether a charge is or is not beatable at trial.

Copyright © 2017 by Brendan Bukalski

The information provided in this column is general in nature, and should not be relied upon as legal advice or interpreted as creating an attorney-client relationship. As a general rule, all specific legal problems should be handled by an individual's attorney. All rights reserved. Any copying, duplication, or commercial use of the information contained in this column is strictly prohibited without prior permission.